CHUUK STATE SUPREME COURT
TRIAL DIVISION
Cite as Udot Municipality v. Chuuk ,
9 FSM Intrm. 586 (Chuuk S. Ct. Tr. 2000)

[9 FSM Intrm. 586]

UDOT MUNICIPALITY,
Plaintiff,

vs.

CHUUK STATE GOVERNMENT,
Defendant.

CSSC CA NO. 241-98

ORDER GRANTING SUMMARY JUDGMENT

Wanis R. Simina
Associate Justice

Hearing:  November 11, 2000
Decided:  November 23, 2000

[9 FSM Intrm. 587]

APPEARANCE:
For the Plaintiff:     Stephen V. Finnen, Esq.
                                Law Offices of Saimon & Associates
                                P.O. Box 1450
                                Kolonia, Pohnpei FM 96941

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HEADNOTES
Civil Procedure ) Motions; Civil Procedure ) Summary Judgment
     When no response to a summary judgment motion appears in the record and the opposing party does not appear at the noticed hearing the motion is due to be granted for that reason alone.  Udot Municipality v. Chuuk, 9 FSM Intrm. 586, 587 (Chk. S. Ct. Tr. 2000).

Constitutional Law ) Chuuk ) Judicial Powers
     No branch of the Chuuk state government is supreme, but it is the duty of the court in each case to determine if the powers of any branch of the government have been exercised in conformity with the constitution, and if they have not, to treat their acts as null and void.  Udot Municipality v. Chuuk, 9 FSM Intrm. 586, 588 (Chk. S. Ct. Tr. 2000).

Constitutional Law ) Chuuk
     Because the Chuuk Constitution gives municipalities full power over local affairs and government the Governor cannot, by Executive Order, require municipalities to relinquish any control over municipal employees.  Udot Municipality v. Chuuk, 9 FSM Intrm. 586, 588 (Chk. S. Ct. Tr. 2000).

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COURT'S OPINION
WANIS R. SIMINA, Associate Justice:
     This case comes before the Court after notice and hearing on Plaintiff's Motion for Summary Judgment.  The Plaintiff appeared by Counsel.  No one appeared on behalf of the Defendant.  No response from Defendant to Plaintiff's Motion appears in the record.  Under the provisions of Rule 8(d) CSSC Rules of Civil Procedure, the Motion is due to be granted for this reason alone.

     However, Counsel for the Plaintiff, Udot Municipality urges the Court to address the issue of the constitutionality for municipal employees by surrendering the obligation of paying social security and income tax on such payrolls.  Also, the Executive Order effectively required the Municipalities to provide the social security numbers of each employee, then the State prior to releasing drawdowns to the Municipalities, would withhold and pay the social security and income taxes on behalf of the Municipalities.  The record in the case further indicates that the State would withhold all municipal funding until compliance with the Governor's Executive Order was met.

     Although the parties have stipulated that the Governor's Executive Order Number 4-98 will not apply to the Udot Municipality, the constitutional issue of the Governor's Executive Order remains.

     In the case of Robert v. Chuuk State House of Representatives, 6 FSM Intrm. 260 (Chk. S. Ct. Tr. 1993) the Court observed that no branch of the Chuuk State Government is supreme.  Further, that

[9 FSM Intrm. 588]

it is the duty of the Court in each case to determine if the powers of any branch of the Government "have been exercised in conformity with the constitution, and if they have not, to treat their acts as null and void."

     The Memorandum of Points and Authorities filed by counsel for the Plaintiff contains the following:

This case revolves around three Constitutional provisions.

Article VIII, section 6 states:

Each fiscal year, the Legislature shall appropriate for the operation of the municipal governments at least 8 percent of the state operation funds, and shall appropriate to the municipalities for development projects at least 40% of the development funds that may be allocated.

Article XIII, section 5 states in relevant part:

The powers and functions of a municipality with respect to its local affairs and government are superior to statutory law.

Lastly, concerning the power of the executive, Article VI, section 1 states:

The executive power of the State Government is vested in the Governor.  The Governor shall faithfully execute and implement this Constitution and all state laws.

     The Court agrees with Counsel's assessment of the issues in this case, i.e., "Does the Governor have the power, by Executive Order, to abrogate the above constitutional provisions by requiring municipalities to relinquish any control over municipal employees.

     The Court thinks not.

     It is beyond question that the framers of the Chuuk State Constitution intended to give municipalities full power over "local affairs and government."  Likewise, it is clear from the record in this case that the Governor is attempting to infringe upon the management of the integral and internal affairs of the Municipalities. This Court finds no authority for such action by the Governor and none has been cited by Counsel for the Governor.  To the contrary, the provisions of the Chuuk State Constitution cited above are to the inescapable conclusion that the Governor has no authority to meddle in the local affairs of the Municipalities nor to withhold municipal funds based on an Executive Order which is null and void on its face.

Therefore, it is ordered that, based on the foregoing, the Chuuk State Governor's Executive Order number 4-98, is null and void in its entirety and is of no force and effect, and

Further ordered that no Chuuk State Official or any Municipal Official shall take or withhold any action based on Executive Order 4-98 issued by the Chuuk State Governor.

Further ordered that the Clerk of the Court shall serve a copy of this order on the Mayor of each Municipality in Chuuk State and upon the Director of the Treasury and the Governor of Chuuk State.

[9 FSM Intrm. 589]

Further ordered that this Court shall retain jurisdiction of this case for the purpose of entering such other or further orders as justice may require.
                                                                                                                                                                                                                                                                                                           
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